[00:00:01] Speaker 03:
The next case for argument is 16-2258 Cole-Keprow versus BSR Industries.

[00:00:53] Speaker 00:
Ready?

[00:00:54] Speaker 00:
Yes.

[00:00:55] Speaker 00:
Good morning, Your Honors.

[00:00:56] Speaker 00:
May it please the court.

[00:00:57] Speaker 00:
John Arts on behalf of the appellant, Cole Caprow.

[00:01:00] Speaker 00:
We're here appealing the board's decision in an IPR proceeding, finding all claims of the 814 patent invalid based on three separate grounds of obviousness.

[00:01:10] Speaker 03:
Can I ask you about that?

[00:01:11] Speaker 03:
This is just a process argument, which is it's unclear to me how many of these are independent.

[00:01:19] Speaker 03:
By my count, runt is the only one that covers all the claims, including claim nine, whereas the other obviousness determinations did not include claim nine.

[00:01:27] Speaker 00:
That's exactly correct, Your Honor.

[00:01:31] Speaker 00:
The board's findings of obviousness lack two things.

[00:01:34] Speaker 00:
They lack either rational underpinnings or they lack substantial evidence.

[00:01:38] Speaker 00:
In fact, on the substantial evidence issue, when you look at the evidence that the board cites or the citations they use in their brief,

[00:01:45] Speaker 00:
they cite to petitioners' papers, whether it be the petition itself or the reply.

[00:01:50] Speaker 00:
And if you go to the pages that the board cites, there's no evidence submitted there, because petitioner didn't submit any.

[00:01:57] Speaker 00:
They rely, in some cases, on the actual teachings of the 814 patent itself, which we believe constitutes impermissible hindsight, particularly when you look at the actual evidence and teachings of the 814 patent that counsels against some of the proposed modifications that they're making.

[00:02:14] Speaker 00:
So we believe that the board's decision in this case should be reversed in its entirety.

[00:02:17] Speaker 03:
Well, that's a kind of global thing that isn't terribly helpful.

[00:02:20] Speaker 03:
I mean, why don't you give us some specifics?

[00:02:22] Speaker 03:
Certainly we lied on the disclosures and what the disclosures said.

[00:02:26] Speaker 00:
Absolutely, Your Honor.

[00:02:27] Speaker 00:
The background of the 814 patent says at the time of the invention, and the board acknowledged, there were two types of gaming machines.

[00:02:34] Speaker 00:
There were video gaming machines, and there were mechanical gaming machines, like a slot machine type.

[00:02:39] Speaker 00:
They're different.

[00:02:40] Speaker 00:
The background goes to great lengths to talk about that these

[00:02:44] Speaker 00:
require custom cabinets.

[00:02:46] Speaker 00:
Each has to be custom separately made.

[00:02:48] Speaker 00:
They have different components.

[00:02:50] Speaker 00:
And because of that, they're extremely expensive.

[00:02:53] Speaker 00:
In fact, other than being gaming machines, they share virtually nothing in common.

[00:02:58] Speaker 00:
And this is set forth in column one, for example, lines 38 to 41, lines 45 to 48, and 46 through 50.

[00:03:08] Speaker 00:
With respect to the video game types, at the time they took up a lot of space.

[00:03:12] Speaker 00:
They needed a significant depth to be able to accommodate the CRT video screens that were used at that point in time.

[00:03:20] Speaker 00:
So they took up valuable space on the gaming floor.

[00:03:23] Speaker 00:
It wasn't until the 814 patent came along and solved both of these problems.

[00:03:28] Speaker 00:
As to the video game, it took a flat panel display and mounted it to the inner surface of the door, which allowed the machine to be made significantly less depth, which allowed more of these to be placed on the casino floor.

[00:03:41] Speaker 00:
which is part of the reason of the extensive licensing that the board found to virtually every competitor in the industry.

[00:03:48] Speaker 00:
So let's talk about round one, which is Fraley.

[00:03:52] Speaker 00:
Fraley is a non-videotype machine, of a non-videotype set forth in the background.

[00:03:59] Speaker 00:
It has a display, but as the board found it... That's usually true.

[00:04:02] Speaker 03:
I mean, when we're in an obvious determination, we're looking at combining several references, and that's precisely what the board did here.

[00:04:09] Speaker 03:
It relied on Fraley

[00:04:11] Speaker 03:
for teaching a static display attached to a cabinet door, and then it relied on other references for the questions you needed.

[00:04:18] Speaker 03:
So I guess I'm not really understanding what you're telling us.

[00:04:21] Speaker 00:
So what I'm telling you, Your Honor, is the board said it'd be obvious to take a video display and substitute it for the non-video display in the non-video gaming machine, basically transforming what was, as the background of the patent sets forth, transforming an electronic gaming machine

[00:04:41] Speaker 00:
that is custom-made differently at the outset.

[00:04:43] Speaker 00:
You're choosing one of two machines, which the background teaches are two separate paths.

[00:04:48] Speaker 00:
And the board said it would be obvious to take a video display and substitute it for a non-video display.

[00:04:55] Speaker 00:
And what's the result going to be?

[00:04:57] Speaker 00:
You're still going to have a mechanical game with a video.

[00:05:01] Speaker 01:
This isn't an anticipation ejection.

[00:05:04] Speaker 01:
You've got a bunch of pieces.

[00:05:06] Speaker 01:
You've got a bunch of old pieces.

[00:05:08] Speaker 01:
Isn't this like KSR?

[00:05:12] Speaker 01:
There's motivation to try to improve devices.

[00:05:18] Speaker 01:
And so you add an LCD, and you've got the window and the door.

[00:05:24] Speaker 00:
But, Your Honor, I would suggest that that's hindsight.

[00:05:26] Speaker 00:
And the reason being is if the motivation is to provide a non-video game,

[00:05:31] Speaker 00:
that was selected at the beginning to not be a video game.

[00:05:35] Speaker 00:
It's not like today when video games were introduced that suddenly the non-video games have gone away.

[00:05:42] Speaker 00:
They're still there.

[00:05:43] Speaker 00:
There's two separate markets.

[00:05:46] Speaker 00:
You've got the non-video, the slot machines, and then you've got the video.

[00:05:50] Speaker 01:
Why don't you tell us about commercial success?

[00:05:54] Speaker 01:
The board tossed that aside.

[00:05:56] Speaker 01:
I said you don't have corroborative evidence.

[00:05:59] Speaker 01:
And in fact, it said the commercial success was de minimis.

[00:06:05] Speaker 01:
The amount of money you were bringing in was de minimis.

[00:06:09] Speaker 00:
On the commercial success, it did.

[00:06:11] Speaker 00:
But what the board did find is it credited that the 814 patent had been licensed to virtually the entire industry.

[00:06:19] Speaker 00:
And VSR doesn't challenge this.

[00:06:22] Speaker 03:
It says that the board... Yeah, but it was sort of stifled in terms of where that took them, because didn't they find just one of them was specific to the 814 patent?

[00:06:30] Speaker 03:
And so, yes, there are licenses, but we don't know the breadth of those licenses and how much of a hard 814 plate.

[00:06:37] Speaker 00:
I think what the board said, Your Honor, is all the licenses were not exclusively for the 814 patent.

[00:06:42] Speaker 00:
So all of the licenses licensed the 814 patent.

[00:06:46] Speaker 00:
but it also licensed in a different patent.

[00:06:48] Speaker 00:
So they said it was difficult to apportion.

[00:06:50] Speaker 00:
But nonetheless, in connection with the declaration of Mr. Cook, the vast majority of the industry has taken a license under the 814 patent, with the upfront payments that are part of these licenses exceeding about $2.6 million.

[00:07:07] Speaker 03:
What are we to do with that evidence?

[00:07:09] Speaker 03:
Because if the license covers multiple patents,

[00:07:13] Speaker 03:
How were you, did you put forth any evidence to, upon which one, conclude what the apportioned value of the 814 patent was?

[00:07:21] Speaker 00:
There was no evidence put forth to value one versus the other.

[00:07:25] Speaker 00:
But the board found and credited that this was evidence that needs to be taken into account when evaluating the issue of obviousness.

[00:07:34] Speaker 00:
But what it did find, they found in this case, they believed it was a strong case of obviousness.

[00:07:39] Speaker 00:
And so because there wasn't the nexus, it wasn't sufficient to overcome.

[00:07:43] Speaker 00:
But as we've set forth in our brief, we don't think that there's any evidence of obviousness, but certainly not strong, because there's no testimony from a person of ordinary skill in the art.

[00:07:53] Speaker 00:
There's no expressed motivation in any of the references to make the purported modifications or combinations that they discuss.

[00:08:01] Speaker 00:
So to the extent that there's any obvious, we don't believe it's a strong case.

[00:08:05] Speaker 00:
And then as this evidence exists, it should be sufficient to overcome whatever obviousness exists.

[00:08:13] Speaker 04:
If the PTAB says that certain factors, like the fact that the license covers many different patents, that that diminishes the weight that should be accorded to that evidence, we review that for substantial evidence, right?

[00:08:30] Speaker 04:
Yes, Your Honor.

[00:08:31] Speaker 04:
What about the analysis of whether the commercial success outweighs the evidence of obvious?

[00:08:38] Speaker 04:
That's an obviousness.

[00:08:39] Speaker 04:
That's a question of fact.

[00:08:40] Speaker 00:
That is also a question of fact, Your Honor.

[00:08:42] Speaker 03:
But do you have a case that says that?

[00:08:45] Speaker 03:
I mean, the ultimate – we all know the ultimate – there are certain things that are questioned for fact.

[00:08:49] Speaker 03:
There's site fights that appear in all the cases about underlying questions of fact.

[00:08:53] Speaker 03:
And then there's the ultimate question of law and obviously.

[00:08:56] Speaker 03:
Do you have a case that says that the weighing – I mean, genuinely, I don't know – that the weighing is not

[00:09:02] Speaker 03:
If it's the ultimate determination of obviousness, why isn't the weighing the legal versus... Well, I think, as you explained, I think it would almost have to be, is if you're making the underlying... Have to be which?

[00:09:12] Speaker 00:
A question ultimately goes into the overall question of law as to what is obvious.

[00:09:16] Speaker 00:
Obviousness being a question of law predicated on underlying facts.

[00:09:21] Speaker 00:
And if one of the underlying facts is the commercial success, then that fact has to be taken into when you're analyzing to determine whether or not there's the ultimate question of obviousness as a matter of law.

[00:09:33] Speaker 01:
In other words, that which might appear to be obvious when you look at a bunch of references may be shown not to have been obvious when you look at commercial success.

[00:09:45] Speaker 00:
That's correct.

[00:09:47] Speaker 00:
Yes, that's correct.

[00:09:49] Speaker 00:
I'd like to jump to the second ground, which is Runty.

[00:09:54] Speaker 00:
Runty is a tabletop.

[00:09:56] Speaker 00:
What the board found is that Runty was

[00:09:59] Speaker 00:
obvious because, and what we're challenging is, is the board found that if you substituted a flat panel display for the CRT display, and the display in Runty is attached horizontally to the tabletop, the board found that it would be obvious if you substituted that, that you could decrease or have a reduced depth dimension.

[00:10:21] Speaker 00:
But the reduced depth dimension that the board was focusing on was height.

[00:10:25] Speaker 00:
If you decrease and change and substitute an LCD display, which as we set forth in our brief, we don't think is proper, but substitute it for a CRT, all you've done is decrease the height of the cabinet.

[00:10:37] Speaker 00:
If you look specifically at what claim eight requires, the reduced depth dimension in claim eight and also claim four is predicated on the cabinet having a front, back, and two sides.

[00:10:54] Speaker 00:
And it says that the cabinet has a width from said first side to said second side, which exceeds the depth of said cabinet from said front to back.

[00:11:05] Speaker 00:
So what the claim is concerned about is the depth of the device from front to back, because the door is on the front of the device.

[00:11:12] Speaker 00:
And when you open the door, it allows access to the interior.

[00:11:16] Speaker 00:
And it's decreasing that depth front to back as compared to the width.

[00:11:21] Speaker 00:
The board didn't address that.

[00:11:22] Speaker 00:
The board ignored that claim language when it said that when you decrease the height of Runty, they said that that met the claim limitation.

[00:11:31] Speaker 03:
I guess I'm not entirely clear.

[00:11:33] Speaker 03:
Runty is the table.

[00:11:34] Speaker 03:
So the front and the back of the cabinet, couldn't that be the top and the bottom of the table?

[00:11:42] Speaker 00:
The Runty, the board and petitioner agree that the top of Runty is the top.

[00:11:49] Speaker 00:
And so it's got its top, bottom, sides.

[00:11:52] Speaker 00:
No one has made the position that the top of Runty is the front, because it just can't be.

[00:11:59] Speaker 00:
Because you're talking about the depth, front to back, as compared to side to side.

[00:12:11] Speaker 00:
I'd also like to address claim nine.

[00:12:14] Speaker 00:
of run to you.

[00:12:16] Speaker 00:
The board aired and also finding Claim 9 obvious.

[00:12:19] Speaker 00:
Claim 9 requires a bracket mounted to the door and it requires that the bracket have a horizontal support structure on which the lower edge of the display rests.

[00:12:30] Speaker 00:
And the claim specifically says that the lower edge of the display rests on this bracket when the display is connected to the door.

[00:12:39] Speaker 01:
If we agree with you that commercial success is shown by licensing, which claims would that affect?

[00:12:51] Speaker 00:
The evidence I believe that is in the declaration of Mr. Cook applies specifically to claims one and eight.

[00:12:58] Speaker 00:
It talks about the

[00:13:01] Speaker 00:
the feature that customers were specifically requesting and specking and why they felt that they needed to enter and get rights under the 814 patent related to a cabinet having reduced steps and a screen mounted to the inside of the door.

[00:13:18] Speaker 00:
Specifically, claim eight.

[00:13:23] Speaker 00:
With respect to claim nine, Your Honor, VSR in its petition never asserted

[00:13:30] Speaker 00:
that Runty taught the bracket of claim nine.

[00:13:36] Speaker 00:
Never asserted in its petition, never asserted in its reply.

[00:13:40] Speaker 00:
It merely said it was obvious.

[00:13:42] Speaker 00:
Yet the board still found that Runty taught a bracket having a horizontal support.

[00:13:49] Speaker 00:
Because when the Runty lid was raised, the CRT display would rest, the lower surface would rest on this bracket.

[00:13:59] Speaker 00:
But when the door is closed, it's not resting on a horizontal surface.

[00:14:04] Speaker 00:
So in all positions, it's not resting on a horizontal surface, as is required by the claim.

[00:14:11] Speaker 00:
Whereas if you look at the 814 patent, when the door is on the front, as the claim requires, claim 8, and it is moved from an open position to a closed position, the display is always resting on the horizontal support surface, which is not present in Runty.

[00:14:28] Speaker 00:
The board erred.

[00:14:29] Speaker 00:
in that regard and ignoring that limitation.

[00:14:34] Speaker 03:
You're into your rebuttals.

[00:14:36] Speaker 00:
Oh, I'm sorry.

[00:14:37] Speaker 00:
Thank you, Your Honor.

[00:14:38] Speaker 00:
I'll reserve thank you.

[00:14:49] Speaker 02:
Thank you.

[00:14:49] Speaker 02:
Good morning, Your Honors.

[00:14:50] Speaker 02:
Adam Yale for Pelley Petitioner VSR with me as Michael Renz today.

[00:14:57] Speaker 02:
I think an appropriate place to start is with the standard of review, which is substantial evidence for... Can you speak up a little?

[00:15:02] Speaker 02:
Oh, yes, I'm sorry.

[00:15:03] Speaker 02:
I think an appropriate place to start is the standard of review, particularly in respect to every single argument, I believe, raised by appellants, is under the substantial evidence standard at a minimum.

[00:15:15] Speaker 02:
And the reason I say at a minimum is because the testimony of experts, or the testimony of witnesses, particularly their credibility, is

[00:15:25] Speaker 02:
attributed a somewhat higher standard even than substantial evidence.

[00:15:29] Speaker 01:
Mr. Yell, I want to ask you about licensing.

[00:15:34] Speaker 01:
The board said that the revenue was de minimis.

[00:15:38] Speaker 01:
Well, I look at the declaration

[00:15:41] Speaker 01:
And I see a one-time payment of a quarter of a million dollars, an upfront payment of a quarter of a million dollars, another one of one in the three million dollars, all involved our compensation for licensing this patent.

[00:15:57] Speaker 01:
Why doesn't that overcome any otherwise presumption of obviousness from all of these references?

[00:16:05] Speaker 02:
Well, Your Honor, there are a couple layers to that.

[00:16:07] Speaker 02:
First of all is that the Board didn't just say it was de minimis.

[00:16:11] Speaker 02:
Mr. Cook, who is their sole support of any sort of background on these licenses, Mr. Cook said that it is de minimis in the value of the machine to which the 814 patent is licensing.

[00:16:25] Speaker 02:
And that, I think, Your Honor, is very important because the thing that you're looking for with Nexus is some sort of independent recognition that this is important.

[00:16:35] Speaker 02:
And if you're talking in de minimis sum, then you're not talking independent recognition that this invention is important.

[00:16:41] Speaker 02:
You're talking.

[00:16:42] Speaker 01:
Well, where did he say that it was de minimis?

[00:16:45] Speaker 01:
Mr. Cook?

[00:16:46] Speaker 01:
Mr. Cook.

[00:16:47] Speaker 01:
It was his declaration, right?

[00:16:49] Speaker 02:
It was his deposition that said it was de minimis.

[00:16:55] Speaker 02:
One moment, please.

[00:17:00] Speaker 01:
Hundreds of thousands of dollars.

[00:17:02] Speaker 01:
I don't know the gaming business, of course.

[00:17:05] Speaker 01:
$100,000 and $1,000,000 doesn't sound de minimis to me.

[00:17:10] Speaker 02:
Yes, Your Honor.

[00:17:12] Speaker 02:
Real quick, page 23 of our red brief has this site to the de minimis at the bottom.

[00:17:17] Speaker 02:
It would be at the Cooke deposition, page 37, line 16 through page 38.

[00:17:23] Speaker 03:
Do you want to spend your time?

[00:17:26] Speaker 02:
Oh, sorry, 637 through 638.

[00:17:33] Speaker 02:
Again, Your Honor, I think that we need to look at what the de minimis means in context.

[00:17:38] Speaker 02:
IGTs specifically is brought up a lot because they're the largest gaming manufacturer.

[00:17:43] Speaker 02:
A million dollars may sound like a lot, but you're talking a hundred thousand... I'm looking at your red briefs, I think.

[00:17:49] Speaker 01:
Mr. Cook admitted that the $20 per unit royalty was de minimis.

[00:17:56] Speaker 01:
But it's a matter of business arrangements between the parties, whether you

[00:18:01] Speaker 01:
paid per unit or upfront?

[00:18:04] Speaker 02:
Yes, Your Honor.

[00:18:06] Speaker 01:
So that comment related to per unit rather than upfront payments.

[00:18:10] Speaker 02:
But it's quite easy to translate in this situation, Your Honor, because we have that sort of information between Mr. Cook's deposition and his declaration.

[00:18:21] Speaker 02:
This is specifically for Bally.

[00:18:23] Speaker 02:
If you look at IGT, which Mr. Cook establishes

[00:18:30] Speaker 02:
represents approximately 75% of the market or somewhere in that range, then the numbers go way up.

[00:18:36] Speaker 02:
You're talking maybe 100,000 gaming machines per year at 20 grand apiece.

[00:18:43] Speaker 02:
That's $20 million per year.

[00:18:45] Speaker 02:
So if you want to look at the lump sum payment of $1.6 million over 20 years span of this patent, that is de minimis.

[00:18:53] Speaker 02:
That's $400 million versus 1.6.

[00:18:55] Speaker 02:
It's barely a percent.

[00:19:00] Speaker 02:
I believe it's well less than the cost of any reasonable patent litigation, at least as they occur today.

[00:19:06] Speaker 02:
So I do think that's de minimis.

[00:19:08] Speaker 02:
I think the board made that finding.

[00:19:10] Speaker 02:
I think it's a factual finding that is subject to substantial evidence and is absolutely supported by substantial evidence.

[00:19:17] Speaker 04:
Mr. Artz suggested that nobody has argued that the table top of Runty is the front, as required by the claim.

[00:19:25] Speaker 04:
Is that right?

[00:19:26] Speaker 02:
I don't agree with that, Your Honor, no.

[00:19:27] Speaker 02:
And there's a couple problems with that.

[00:19:29] Speaker 02:
Number one is that the claim never recites a top and the bottom.

[00:19:34] Speaker 02:
It just says sides of front and the back.

[00:19:36] Speaker 02:
So it is ambiguous as to whether or not there is a top and a bottom or whether or not the front can be the top and the bottom.

[00:19:42] Speaker 02:
Especially in a PTAB review with an unexpired patent when you're talking about the broadest reasonable interpretation.

[00:19:47] Speaker 02:
And again, as the PTAB correctly notes, there were no specific claim constructions argued by either party on this front.

[00:19:53] Speaker 02:
But I do believe that the PTAB

[00:19:55] Speaker 02:
at least implicitly recognized that the top of Runty is the front of the 814 patent, as recited.

[00:20:02] Speaker 04:
And that was the art position that you took?

[00:20:06] Speaker 02:
That was the position that we took, and that is the position I believe the PTAB adopted, and I believe they did so correctly.

[00:20:12] Speaker 02:
Particularly when you look at it sort of pragmatically, even Mr. Arts said the front is where the display goes, and that's where the display is in Runty.

[00:20:22] Speaker 02:
It makes a great deal of sense, I believe,

[00:20:24] Speaker 02:
and in their reply brief on appeal, they try to argue that side 32 of Runty is the front, which doesn't make much sense to me because Runty is a hexagonal shape for multiple players around the table.

[00:20:39] Speaker 02:
It's kind of arbitrary that they picked one because that means somebody is playing from the back and that makes no sense.

[00:20:44] Speaker 02:
If you say the top of Runty is the front of the 814 patent, it all makes sense.

[00:20:49] Speaker 02:
That's where the display is, that's where everybody's looking,

[00:20:52] Speaker 02:
and you meet 814 independent claims very easily.

[00:21:00] Speaker 02:
I believe in general their obviousness arguments are dated in that in many instances it would seem that Mr. Arts would prefer that KSR didn't exist and a number of their cases are pre-KSR and their arguments are pre-KSR.

[00:21:19] Speaker 02:
We do not require an expert for IPRs.

[00:21:21] Speaker 02:
It's very well established, especially with simple art such as this.

[00:21:25] Speaker 02:
And there's no need for an express teaching suggestion or motivation in the art.

[00:21:30] Speaker 02:
And we have very well documented evidence and very strong evidence of a motivation here.

[00:21:35] Speaker 02:
LCDs had recently come out.

[00:21:37] Speaker 02:
They were known in the art, as Mr. Arts admitted at the trial before the PTAB.

[00:21:43] Speaker 02:
And they have well-known benefits.

[00:21:46] Speaker 02:
The 814 patent expressly

[00:21:49] Speaker 02:
talks about the benefits of the LCD, which they did not invent.

[00:21:53] Speaker 02:
They did not even invent the use of LCDs in a gaming machine.

[00:21:56] Speaker 02:
We get to rely upon that.

[00:21:58] Speaker 02:
Their statement of the prior art and what the benefits of known components in the prior art achieved by their inclusion, we get to rely upon that, and that's what we did rely upon.

[00:22:07] Speaker 02:
It provides a very strong motivation to go straight from Fraley, Runty, or Smith directly to the 814 pen.

[00:22:22] Speaker 03:
The Runty reference is the only one that goes to claim nine.

[00:22:28] Speaker 02:
Yes, Your Honor.

[00:22:29] Speaker 02:
To answer, I believe what your first question was.

[00:22:30] Speaker 02:
The independent claims are claims one and eight.

[00:22:33] Speaker 02:
Claim nine is the only one that recites this bracket support arrangement.

[00:22:39] Speaker 02:
And claim two is slightly similar in that it involves the use of amount.

[00:22:45] Speaker 02:
But yes, Runty was the only one that was found to invalidate claim nine.

[00:22:50] Speaker 02:
Smith and Fraley plus Okada were argued for that purpose.

[00:23:00] Speaker 02:
Your Honor, unless there's any further questions, I think that's all I have.

[00:23:03] Speaker 02:
Thank you.

[00:23:04] Speaker 02:
Thank you.

[00:23:08] Speaker 00:
I think I just have two points, Your Honor.

[00:23:10] Speaker 00:
The first is that, as Your Honor noticed, the de minimis related to the amount of the royalty rate.

[00:23:17] Speaker 00:
The upfront payments in terms of the licenses were well over $2.6 million in terms of royalty that was given based on what the licenses are that are in the record.

[00:23:29] Speaker 00:
That doesn't include whatever subsequent royalty payments that would have been made for the terms of the license agreement.

[00:23:35] Speaker 00:
And as to the issue with runtia, refer to the court to the petition filed below, and this is Appendix 674, talking about Claim 5.

[00:23:47] Speaker 00:
which relates to whether that relates to the door being on the front of the cabinet.

[00:23:52] Speaker 00:
It would also apply with respect to claim eight.

[00:23:55] Speaker 00:
It says, Runti discloses that the door is located at the top of the cabinet.

[00:24:00] Speaker 00:
This is their quote, the first sentence with respect to claim five.

[00:24:04] Speaker 00:
It would have been known to one of ordinary skill in the art that the Runti device could be oriented in the traditional fashion, i.e.

[00:24:12] Speaker 00:
as an upright console.

[00:24:14] Speaker 00:
But that's directly against the teachings of Runty that says our tabletop is against, is different than a console because people can't keep their drinks there and would have to leave their belongings and go to the console.

[00:24:27] Speaker 00:
I see my time is up.

[00:24:28] Speaker 00:
Can I make one more point?

[00:24:30] Speaker 00:
Yes.

[00:24:30] Speaker 00:
And that is, as to Runty, the board didn't address that last point despite petitioner conceding that Runty has a top and the depth is from top to bottom.

[00:24:41] Speaker 00:
That's all the board found.

[00:24:43] Speaker 00:
It didn't go any further with respect to the language of the claim.

[00:24:47] Speaker 03:
Thank you, Your Honor.